scholarly journals PEMANFAATAN BARANG GADAI DITINJAU DARI HUKUM ISLAM DAN HUKUM PERDATA INDONESIA

2019 ◽  
Vol 4 (1) ◽  
pp. 105-124
Author(s):  
Hani Sholihah
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Civil Code ◽  
Property Value ◽  
Accounts Receivable ◽  
Positive Law ◽  
Perishable Goods ◽  
Economic Transaction ◽  
Code Provisions

Various transactions conducted by humans to achieve the necessary. One type of economic transaction (mu`amalah) is wont to do is pledge, namely submission of an object (goods), as a guarantee to the person who gives the loan. This study aims to determine: a) the provisions of lien according to Islamic law; b) pledge by the Civil Code provisions; and c) the use of goods lien law based on Islamic law and the Civil Code. The study concluded: 1) according to Islamic law, a pledge was made items that have a property value in the eyes of Personality 'as collateral, so that the person concerned may take debt or he can take some of the benefits that their goods; 2) according to civil law, lien is a creditor or the rights acquired by proxies as collateral for debts, and authorizes the creditor to take payment of accounts receivable; 3) the scholars differed on the use of goods pawn. As for the positive law, goods pledge not to use it for safekeeping, so that perishable goods must not be mortgaged.Berbagai transaksi dilakukan manusia untuk memenuhi kebutuhan hidupnya. Salah satu jenis transaksi ekonomi (mu`amalah) yang biasa dilakukan adalah gadai, yaitu penyerahan suatu benda (barang), sebagai jaminan kepada orang yang memberikan pinjaman. Penelitian ini bertujuan untuk mengetahui: a) ketentuan gadai menurut hukum Islam; b) ketentuan gadai menurut KUHPerdata; dan c) hukum pemanfaatan barang gadai berdasarkan hukum Islam dan KUHPerdata. Hasil penelitian menyimpulkan: 1) menurut hukum Islam, gadai adalah menjadikan barang yang mempunyai nilai harta menurut pandangan syara’ sebagai jaminan utang, sehingga orang yang bersangkutan boleh mengambil utang atau ia dapat mengambil sebagian manfaat barangnya itu; 2) menurut hukum perdata, gadai adalah suatu hak yang diperoleh kreditur atau oleh kuasanya sebagai jaminan atas utangnya, dan memberi wewenang kepada kreditur untuk mengambil pelunasan piutangnya; 3) para ulama berbeda pendapat tentang pemanfaatan barang gadai. Adapun menurut hukum positif, barang gadai bukan untuk digunakan melainkan untuk disimpan, sehingga barang yang cepat rusak tidak boleh digadaikan.

scholarly journals A Comparative Study on the Principles of Online Buying and Selling from the Perspectives of Islamic Law and Indonesian Positive Law

2021 ◽  
Author(s):  
Dwiyana Achmad Hartanto
Keyword(s):  
Comparative Study ◽  
Consumer Protection ◽  
Qualitative Method ◽  
Islamic Law ◽  
Civil Code ◽  
Normative Approach ◽  
Positive Law ◽  
Online Trading ◽  
Analytical Research ◽  
Online Buying

The study aims to analyze the comparative perspectives between Islamic Law and Indonesian Positive Law in the practices of online buying and selling (trading). This study uses a juridical and normative approach with a specification of descriptive-analytical research. The data comes from primary law, secondary law, and tertiary law, and the researcher used a qualitative method to analyse the data. The shift and development of offline-based buying and selling (trading) practices to online practices today has required special regulation in the Indonesian Positive Law. The absence of specific rules regarding the practice of online buying and selling indicates that these activities should be subjected to the existing positive Indonesian laws. The principle of freedom of making contracts in the Civil Code (KUH Perdata) provides freedom to make any trade agreements. For the sake of legal certainty in the execution of online buying and selling, the parties must refer to the provisions of the Civil Code, the Information and Electronic Transaction Law (ITE Law), and the Consumer Protection Law (UUPK Law) that are relevant to the trading practice. In addition to these provisions, Islamic Law within the scope of mu’amalah also provides guidelines for the practice of direct buying and selling, but not online buying and selling; however, Islamic law also provides freedom in mu’amalah. The existence of these provisions makes it interesting to conduct a comparative study on the principles of online trading practices from the perspectives of Islamic law and Indonesian positive law. Islamic Law considers it legal to conduct online buying and selling if the terms and conditions of buying and selling are fulfilled, if it provides benefits and negates harm, and if it does not conflict with Al-Qur’an and Al-Hadith, and if it can be designated as al-‘adatu muhakkamah (a custom which is defined as law). According to the Indonesian positive law, in principle, online trading is legal as long as it fulfills the provisions of trading, that is the fulfillment of the terms, elements, principles, rights, and obligations of the parties regulated in the provisions of the Civil Code, Information and Electronic Transaction’s Law, and Consumer Protection Law, along with providing legal assurance and protection for the parties. Keywords: comparative study, online buying and selling, Islamic law, Indonesian positive law

scholarly journals PERKEMBANGAN PERJANJIAN DALAM PRAKTIK PERDAGANGAN (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF)

JURISDICTIE ◽  
2017 ◽  
Vol 7 (2) ◽  
pp. 219
Author(s):  
Cindawati Cindawati
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Contract Law ◽  
Civil Code ◽  
Public Order ◽  
Freedom Of Contract ◽  
Positive Law ◽  
Legal Consequences

Agreement in human life to protect the rights and obligations are balanced. Differences in Islamic Law Perspective: Halal, agreed, able, without coercion, consent and Qobul. While the perspective of Positive Law: agree, capable, certain things, certain circumstances in accordance with Article 1320 of the Civil Code. The equation embracing principle of freedom of contract (al-Hurriyah) Islamic law is based on freedom of contract and volunteerism of each of the parties to a transaction (Q.S.An-Nisa ', 29). Give freedom to every person doing contract as desired, specify its legal consequences are religious teachings. The development of standard agreements in practice must be based on Sharia Principles provide benefits both parties, within the limits of lawful and unlawful, and the limits of public order and contract law, the provisions of Islamic law which is original. Perspective Positive Law: Principles embraced Open, gives the broadest freedom has entered into agreements contain anything, does not violate public order and morality. Rapid trade development followed the model "Standard Agreement". Business actors prepare raw clauses in the Agreement and can be accepted by the community. Raw agreements as a form of efficiency, the parties benefit and advantage to both parties.

scholarly journals Asas Kebiasaan Pemberian Uang Panjar dalam Transaksi Jual Beli Era Pasar Bebas

2019 ◽  
Vol 31 (1) ◽  
pp. 31
Author(s):  
Holijah Holijah
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Customary Law ◽  
Positive Law ◽  
Library Research

AbstractRecently, the activities of economic and as well as various model of transaction has always been developed. However the transaction with this system (voorschot) always happened in the society. This research is aiming to give a concept and practice by consequences of law from a custom giving a voorschot  in transaction. This research is using a documentary and library research. The result of this study showed that with a concept and practice of giving voorschot who is recognized by positive law as well as customary law, civil law and islamic law. Then in the development of the practice this transaction of buying a product with this system is approved as a sign of agreement and can be allowed to held it. IntisariPemberian uang panjar dalam transaksi jual beli suatu produk barang adalah merupakan kebiasaan yang terjadi di masyarakat Indonesia. Transaksi jual beli produk barang sebagai upaya dalam memenuhi kebutuhan dan cara mendistribusikan kebutuhan, yang mana konsep dan praktiknya melandaskan pada filosofi yang berbeda-beda. Pemberian uang panjar sebagai konsep perjanjian, adalah selaras dengan asas kebiasaan dalam perjanjian, sehingga uang panjar sebagai uang tanda jadi dan uang muka dalam transaksi jual beli produk barang juga dalam praktik tergantung kesepakatan akan di kembalikan atau tidak, termasuk bagian harga jual ataupun tidak. Sementara itu, mengenai pemberian uang panjar sebagai uang muka jika terjadi pembatalan, maka uang panjar sebagai uang muka dikembalikan.

PELUANG HUKUM PIDANA ISLAM DALAM PEMBENTUKAN HUKUM PIDANA NASIONAL DI INDONESIA

2018 ◽  
Vol 1 (4) ◽  
Author(s):  
Fitri Wahyuni
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Islamic Law ◽  
Civil Law ◽  
Legal Environment ◽  
Positive Law ◽  
National Legal System ◽  
The Future ◽  
Civil Laws ◽  
Islamic Civilization

Islamic law is prescribed by Allah SWT with the aim of realizing and realizing and protecting the benefit of humanity, both for the benefit of individuals, society or both. But Islamic criminal law is not understood correctly and deeply by society, even by the Islamic community itself. in the meantime, the position of Islamic law in the field of civilization has been broadly established in positive law, whether it is an element of influence, or as a modification of religious norms, which are formulated in civil laws and regulations, or which are covered by a substantial legal environment. Law No. 7 of 1989 concerning religious justice. Whereas Islamic criminal law has not yet gotten a place like the positive law of Islamic civilization. Whereas Islamic criminal law has the same opportunities as civil law in the national legal system based on three factors, namely philosophy, sociology and juridical. In addition to the three factors above, there are opportunities described in this study so that Islamic criminal law has the opportunity to establish national criminal law in the future  

DINAMIKA YURISPRUDENSI MAHKAMAH AGUNG DALAM BIDANG PERDATA ISLAM

2011 ◽  
Vol 3 (2) ◽  
Author(s):  
Hasbi Hasan
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Islamic Law ◽  
Civil Law ◽  
Court Ruling ◽  
Background Factor ◽  
Supreme Court Ruling ◽  
Positive Law ◽  
The Supreme Court ◽  
The Law

<p><strong>This article </strong>discussed the dynamics of the Supreme Court jurisprudence in the legal setting, the problems that want revealed is how the dynamics of the Supreme Court ruling in Islamic law and what the aspects of philosophical and sociological background is. The results obtained indicates that the decisions of the Supreme Court in the civil law of islam have experienced a shift from the traditional framework of islamic law (conventional fiqh)</p> <p>into the framework of positive law (legislation fiqh). The shift was marked by a strong legislative paradigm both at the level of the law application (rechtshandhaving) and the discovery of the law (rechtsvinding). The issue of of justice, gender equality, and human rights is assumed as the background factor of the dynamics thought of Islamic law in the Supreme Court.</p> <p> </p> <p>Artikel ini mendiskusikan Dinamika Yurisprudensi Mahkamah Agung Ri dalam menetapkan hukum, permasalahan yang ingin diungkap adalah  bagaimana dinamika putusan Mahkamah Agung dalam bidang hukum islam dan apakah aspek-aspek filosofis dan sosiologis yang melatar belakangi terjadinya hal tersebut. hasil yang diperoleh menunjukkan bahwa putusan-putusan Mahkamah Agung dalam hukum perdata islam telah mengalami pergeseran dari kerangka hukum islam tradisional (fiqh konvensional) ke  kerangka  hukum  positif  (fiqh perundang-undangan).  Pergeseran  tersebut  ditandai oleh kuatnya paradigma legisme baik pada level penerapan hukum (rechtshandhaving) maupun penemuan hukum (rechtsvinding). Isu keadilan, kesetaraan gender, dan hAM diasumsikan sebagai faktor yang melatar belakangi dinamika pemikiran hukum Islam di Mahkamah Agung.</p> <p> </p>

scholarly journals Batasan Kedewasaan dan Kecakapan Hukum Pewasiat Menurut Kompilasi Hukum Islam dan Kitab Undang-Undang Hukum Perdata

2018 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Sanawiah Sanawiah ◽  
Muhammad Zainul
Keyword(s):  
Research Methods ◽  
Islamic Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Research ◽  
The Will ◽  
Similarities And Differences ◽  
Legal Proof

Limitations of adulthood and lawfulness of the pewasiat both in terms of the position of limits and the ability of the pewasiat, the requirements of the pewasiat and the various limits of the age of the pewasiat according to different views and opinions among the Imam of the School in the determination of its law. The purpose of this study is to to assess the Limitations of adulthood and legal proficiency of pewasiat by Compilation of Islamic Law and Civil Code contained in the Compilation of Islamic Law Article 194 paragraph 1 and Book Civil Law Article 897. In Compilation of Islamic Law Article 194 paragraph 1 concerning the will specifies that the person who intends to reach the age of 21 full and sensible this is a requirement for mlekukan wills must reach the age that has been determined. The Civil Code states that in Article 897 it states that the person who intentions must reach the age of 18 full years, this is a condition of determination to perform the testament. Normative legal research methods analyze, related legislation presented through descriptive and deductive methods which are then analyzed to see the location of similarities and differences between the Compilation of Islamic Law and the Civil Code. The result of this research is the equation of Law Compilation of Compilation of Islamic Law and Civil Code which states the condition of the person having the will should be sensible, while in the determination of maturity 21 years based on article 330 Civil Code. As for the legal proof of Article 426 Civil Code aged 18 years.

scholarly journals Tinjauan Yuridis Akibat Perceraian terhadap Pembagian Harta Gono-Gini Menurut Kitab Undang-Undang Hukum Perdata pada Putusan Nomor : 706/Pdt.G/2012/PN.Medan

2019 ◽  
Vol 4 (2) ◽  
pp. 30
Author(s):  
Binka Lg Simatupang ◽  
Taufik Siregar
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Marriage Law ◽  
Property Distribution ◽  
Everyday Language ◽  
Family Household ◽  
Positive Law

<p>Juridical Review Due to Divorce Against Gono-Gini Property Distribution According to the Civil Code on Decision Number: 706/Pdt.G/2012/PN.Medan</p><h1>The main goal of humans in slimming is to form a harmonious household. Based on the marriage law number 1 of 1974, marriage is a birth bond between a man and a woman as a husband with a family (household) goal that is pleasant or eternal through the Almighty Godhead. If the divorce occurs indoors, the household can be described as having a result of the person in dispute in the household, where during the marriage, the household that has assets or in everyday language in Indonesia is said to be a "gono-gini" property. In this study, the research engineers are normative juridical, namely research aimed at examining or norms in positive law. The characteristics of this research are analytical descriptive, which is uniquely from the facts to determine something that happened. The purpose of this study was to find out the implementation of the sharing of shared assets and to find out the obstacles to the distribution of shared assets. In addition, in the Compilation of Islamic Law, the distribution of shared assets is also regulated in KHPerdata.</h1>

scholarly journals ONLINE LOANS THROUGH SMART CREDIT APPLICATION; A COMPARATIVE STUDY OF ISLAMIC LAW AND POSITIVE LAW

2021 ◽  
Vol 21 (1) ◽  
pp. 86
Author(s):  
Slamet Abidin
Keyword(s):  
Comparative Study ◽  
Islamic Law ◽  
Civil Code ◽  
Literature Study ◽  
Legal Requirements ◽  
Qualitative Design ◽  
The Public ◽  
Positive Law ◽  
Library Research ◽  
Very High

This article aimed to describe and analyze the comparison of the two laws, namely Islamic Law and Positive Law, regarding online loans in the Smart Credit application. This study was a literature study using a qualitative design that was the basis for library research by exploring the postulates of Islamic law and articles of positive law that were directly related to the object studied and analyzing and concluding the comparison of the two laws. The results of this study indicated that the legal requirements for online loans in the Smart Credit application was based on the provisions of Islamic Law and Civil Code. In addition, according to Islamic Law and Positive Law, the online loan mechanism through the Smart Credit application had differences, including in Islamic Law allowing online loans. However, if the loans process used usury or interest, Islamic law forbade the lender. While the Positive Law, in this case, was contained in Article 1320 of the Civil Code, which explained that if a lender has agreed to the process of terms and conditions that the Smart Credit application has made and has bound himself in the applicable provisions, whether a loan that was known to have an interest or a delay in paying would be given a fine, then the loans process was legal in the eyes of the law. This was because they have tied themselves to the online loan process, the Smart Credit application. This study implies that online loans are allowed to be used by the public. However, people must remain careful in using online loan applications that lend funds because the interest from lending these funds is very high and will result in very large losses. 

Ottoman and Secular Civil Law

1977 ◽  
Vol 8 (4) ◽  
pp. 517-543 ◽  
Author(s):  
Dora Glidewell Nadolski
Keyword(s):  
Abrupt Change ◽  
Islamic Law ◽  
Civil Law ◽  
Major Change ◽  
Civil Code ◽  
The Other ◽  
Secular Change ◽  
Total Change ◽  
Other Hand ◽  
The Subject

The term “secularization” is used to qualify that manner of change which occurred in the Islamic system of civil law from 1451 to 1926. It refers to the processes that caused gradual revision and/or change in Islamic Ottoman and Turkish civil law and connotes a departure from the orthodox tenets prescribed by Islamic law. This departure is a process that may create gradual or abrupt change. Also that which in retrospect is classified as a change may not at the outset be classified as such. Specifically, this change may begin in the form of supplementation and continue in this manner without the process taking the form of major change. On the other hand there may be total change within the structure undergoing these experiences. This structure, which is the subject of discussion, is the Islamic Ottoman and Turkish civil law. The secularization process in this case represents: (1) supplementation, (2) reform (Tanzimat and the Mecelle), (3) change (abrogation of the capitulatory system), (4) complete secular change in civil law (adoption of the Swiss Civil Code).

scholarly journals Sejarah Peradilan Islam di Nusantara Masa Kesultanan-Kesultanan Islam Pra-Kolonial

2020 ◽  
Vol 3 (2) ◽  
pp. 67-88
Author(s):  
Ismanto Ismanto ◽  
Suparman Suparman
Keyword(s):  
Criminal Justice ◽  
Social Science ◽  
Criminal Law ◽  
Historical Perspective ◽  
Islamic Law ◽  
Civil Law ◽  
Historical Reality ◽  
Positive Law ◽  
Political Interference ◽  
The Law

What about the development of Islamic criminal law in Nusantara? This question should have been raised for the position of Islamic civil law is widely related to positive law, both as an influencing element or as a modification of religious norms formulated in civil law, even stated in the substantial legal scope of Law No.7 1989 dealing with religious justice. While Islamic law in the field of criminal justice - to mention another term of the Islamic criminal law - has not attracted much attention like the field of Islamic civil law. Apart from that, the available academic studies are often political in nature and broaden the distance between the understanding of positive criminal law and Islamic law in the field of criminal law. From a macro-historical perspective, the plurality of laws is inevitably a historical reality. The Positivism School believes that: the development of law is formalized for the sake of the law only. These circles strongly reject political interference in law, law by law, legal science in the form of value-free science while political science especially when associated with social science can be in the form of value-loaded science. According to this group's view, the procedure of finding, forming, and implementing law are in the hand of legal apparatus, the law can only be found through the judge's decision. The legal formation process is limited to legitimator products passed by the law. Law is a command of the law giver.

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